As filed with the Securities and Exchange Commission on March 16, 2004
Registration No. 33-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------------------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------------------------
SOTHEBY'S HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Michigan 38-2478409
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number)
38500 Woodward Avenue, Suite 100
Bloomfield Hills, Michigan 48304
(Address of principal executive offices)
SOTHEBY'S HOLDINGS, INC. 2003 RESTRICTED STOCK PLAN
(Full title of the plan)
------------------------------------------
Donaldson C. Pillsbury
Executive Vice President, Worldwide General Counsel and Secretary
Sotheby's, Inc.
1334 York Avenue
New York, New York 10021
(212) 606-7000
(Name and address of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered share (1) price registration fee
- ---------------------------------------------------------------------------------------------------------------------------
Class A Limited Voting Common
Stock 2,000,000 $13.89 $27,780,000 $3,519.73
- ---------------------------------------------------------------------------------------------------------------------------
(1) Computed, pursuant to Rule 457(c), solely for the purpose of calculating
the registration fee based on the average of the high and low prices of the
Class A Limited Voting Common Stock as reported on the New York Stock
Exchange Composite Tape on March 11, 2004.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant incorporates by reference: (1) its Annual Report on Form
10-K for the year ended December 31, 2003; (2) its Current Report on Form 8-K,
dated February 5, 2004; (3) its Current Report on Form 8-K dated February 17,
2004 and filed on such date with the Securities and Exchange Commission
(the "Commission"); (4) its Current Report on Form 8-K dated February 17,
2004 and filed on March 2, 2004; and (5) its Current Report on Form 8-K dated
March 11, 2004, each filed with the Commission pursuant to
Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act").
In addition, the Registrant incorporates by reference Item 1 of the Registrant's
Registration Statement on Form 8-A, dated March 7, 1990, and filed pursuant to
Section 12 of the Exchange Act. All documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into
this Registration Statement and to be a part of this Registration Statement
from the date of the filing of such documents. Any statement contained in a
document incorporated or deemed incorporated by reference in this Registration
Statement shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document that
also is or is deemed to be incorporated by reference in this Registration
Statement modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Dividends
With respect to the dividend rights of the Registrant's capital stock,
each share of Class B Common Stock, par value $0.10 per share (the "Class B
Common Stock"), and Class A Limited Voting Common Stock (the "Class A Common
Stock") is entitled to dividends if, as, and when declared by the Board of
Directors of the Registrant. Under the Michigan Business Corporation Act, the
Registrant may not declare and pay dividends (other than in shares of its
capital stock), if after the dividend (a) the Registrant would not be able to
pay its debts as they become due or (b) the Registrant's total assets would be
less than its total liabilities plus the amount that would be needed to satisfy
the preferential rights of holders of the Registrant's preferred stock if the
Registrant were to be dissolved at the time of the dividend. Any dividend that
may be declared and payable in cash, capital stock of the Registrant (other than
Class A Common Stock or Class B Common Stock), or other property will be paid
equally on the Class A Common Stock and the Class B Common Stock. If a dividend
or distribution payable in Class A Common Stock is made on the Class A Common
Stock, the Registrant must also make an equal and
II-1
simultaneous dividend or distribution on the Class B Common Stock payable in
shares of Class B Common Stock. If a dividend or distribution payable in Class B
Common Stock is made on the Class B Common Stock, the Registrant must also make
an equal and simultaneous dividend or distribution on the Class A Common Stock
payable in shares of Class A Common Stock.
Voting Rights
Each share of Class A Common Stock is entitled to one vote, and each
share of Class B Common Stock is entitled to ten votes, on all matters submitted
to a vote of the shareholders. Except as described below, the Class A Common
Stock and the Class B Common Stock vote together as a single class on all
matters presented for a vote of the shareholders. The holders of a majority of
the outstanding shares of Class A Common Stock or Class B Common Stock, voting
as separate classes, must approve certain amendments to the Articles of
Incorporation that adversely affect the shares of their class.
So long (and only for so long) as the principal United States stock
exchange on which the Class A Common Stock is listed requires that the holders
of the Class A Common Stock, voting separately as a class, have the right to
elect 25% of the Registrant's Directors, the holders of the Class A Common Stock
will be entitled to elect 25% of the Registrant's Directors, rounded up in each
instance when necessary so that the holders of the Class A Common Stock, voting
separately as a class, elect not less than 25% of the Registrant's Directors,
and the holders of the Class B Common Stock, voting separately as a class, will
elect the remaining 75% of the Directors, rounded down in each instance when the
number of Directors elected by the holders of Class A Common Stock is rounded
up. At any time that the holders of Class A Common Stock have the right to elect
25% of the Registrant's Directors, if the number of outstanding shares of Class
B Common Stock falls below 12.5% of the aggregate number of outstanding shares
of Class A and Class B Common Stock, then the holders of Class A and Class B
Common Stock will vote together as a single class to elect the remaining 75% of
the Registrant's Directors. The Class A Common Stock is listed on the New York
Stock Exchange, which currently requires such class voting rights.
Shares of Class A Common Stock and Class B Common Stock do not have
cumulative voting rights.
Liquidation Rights
In the event of the liquidation, dissolution, or winding up of the
Registrant, holders of the shares of Class A Common Stock and Class B Common
Stock are entitled to share equally, share for share, in the assets available
for distribution.
Other Rights
No shareholder of the Registrant has preemptive or other rights to
subscribe for additional shares of the Registrant.
Item 5. Interests of Named Experts and Counsel.
Jeffrey H. Miro, a director of the Registrant, is the Chairman of Miro
Weiner & Kramer, which is opining as to the legality of the issuance of the
common stock covered by this Registration Statement. Mr. Miro has not received
and is not entitled to receive restricted stock under the Registrant's 2003
Restricted Stock Plan.
Item 6. Indemnification of Directors and Officers.
II-2
The Registrant's Articles of Incorporation require the Registrant to
indemnify its Directors (including directors of subsidiaries) (and give the
Registrant authority to indemnify its officers (including officers of
subsidiaries), subject to their satisfying certain standards of conduct) for
expenses, judgments, fines, or amounts paid in settlement of civil, criminal,
administrative, and investigative suits or proceedings, including those
involving alleged violations of the Securities Act of 1933 (the "Act"). The
Registrant's Articles of Incorporation limit the liability of its Directors to
the Registrant or its shareholders for monetary damages for breach of the
Directors' fiduciary duties. In addition, the Registrant maintains directors'
and officers' liability insurance that, under certain circumstances, would cover
alleged violations of the Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number
5 Opinion of Miro Weiner & Kramer, special counsel to the
Registrant, as to the legality of the shares.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Miro Weiner & Kramer (included in Exhibit 5).
24 Powers of Attorney.
Item 9. Undertakings.
The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereto) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
II-3
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(i) and
(a)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement.
(b) That, for the purpose of determining any liability under the Act,
each such post-effective amendment will be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time will be deemed to be the initial bona fide offering
thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(d) That, for purposes of determining any liability under the Act, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Exchange Act that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the Act
may be permitted to directors, officers and controlling persons of the
Registrant, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 16th day of
March, 2004.
SOTHEBY'S HOLDINGS, INC.
By: /s/ William F. Ruprecht
------------------------------------
William F. Ruprecht
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- -----
* Chairman of the Board March 16, 2004
- -----------------------------------------------
Michael I. Sovern
* Vice Chairman of the Board March 16, 2004
- -----------------------------------------------
Max M. Fisher
* Deputy Chairman of the Board March 16, 2004
- -------------------------------------------------
The Marquess of Hartington
/s/ William F. Ruprecht President, Chief Executive March 16, 2004
- ------------------------------------------------- Officer and Director
William F. Ruprecht
/s/ William S. Sheridan Executive Vice President and March 16, 2004
- ------------------------------------------------- Chief Financial Officer
William S. Sheridan
* Director March 16, 2004
- ------------------------------------------------
Lord Black of Crossharbour
* Director March 16, 2004
- -----------------------------------------------
Michael Blakenham
* Director March 16, 2004
- ------------------------------------------------
Steven B. Dodge
II-5
* Director March 16, 2004
- --------------------------------------
Jeffrey H. Miro
* Director March 16, 2004
- ---------------------------------------
Sharon Percy Rockefeller
* Director March 16, 2004
- -------------------------------------
Donald M. Stewart
* Director March 16, 2004
- ------------------------------------
Robert S. Taubman
* Executive Vice President and
Director March 16, 2004
- -----------------------------------
Robin G. Woodhead
/s/ Michael L. Gillis Senior Vice President, Controller, and March 16, 2004
- ------------------------------------- Chief Accounting Officer
Michael L. Gillis
*By: /s/ William S. Sheridan
-------------------------------
William S. Sheridan
Attorney-in-Fact
II-6
Exhibit Index
Exhibit Number
- --------------
5 Opinion of Miro Weiner & Kramer, special counsel to the
Registrant, as to the legality of the shares.
23(a) Consent of Deloitte & Touche LLP.
23(b) Consent of Miro Weiner & Kramer (included in Exhibit 5).
24 Powers of Attorney.